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Affirmed and Memorandum Opinion filed May 24, 2007

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-05-01104-CV

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JANETTE CARRELL, Appellant

 

V.

 

TEXAS CAREER MANAGEMENT CORPORATION D/B/A BERNARD HALDANE ASSOCIATES, Appellee

 

 

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2004-33960

 

 

M E M O R A N D U M   O P I N I O N

Janette Carrell appeals from a grant of summary judgment in favor of the appellee, Texas Career Management Corporation, d/b/a Haldane Associates (Haldane).  The sole issue presented is whether the trial court erred in granting summary judgment in favor of Haldane, pursuant to either its traditional motion or its no-evidence motion.  We affirm the judgment of the trial court.


Factual and Procedural Background

Haldane is a career management company, specializing in assisting clients in job searches.  Carrell was an employee of Haldane for almost two years, before she left Haldane for a position with a different employer.  After a year away, she was lured back to Haldane.  Upon her return, she was familiarized with the office procedures, including use of a website, www.careerbuilder.com, as a source of potential clients.  The password to access this website was known to only two people at the office.  One day, less than a month after she had rejoined Haldane, Carrell found herself at the office without either of the individuals who knew the password for the careerbuilder website.  Carrell spoke with the woman she believed to be the owner of the password, Michelle Raychel, and Michelle gave Carrell a password to access the site.  It later occurred to Carrell that the password from Michelle appeared to belong to Administaff, another company.  Carrell spoke with her supervisor, Robert Lewis, about the password, and told him she could not use the password until Haldane confirmed that it had permission from Administaff to use the password.  Approximately five weeks later, Haldane terminated Carrell, citing as its reason that things were Ajust not working out,@ and that she seemed unhappy with her position at Haldane.

Carrell sued Haldane, claiming she was terminated for refusing to perform an illegal actCusing a computer, computer network, or computer system without the effective consent of the owner.  Haldane moved for summary judgment in two separate motions, one traditional,  attempting to negate elements of the cause of action as a matter of law, and one no-evidence.  The trial court granted summary judgment, but did not specify which motion it found meritorious.

Analysis

I.        Waiver of Appeal as to the No-Evidence Motion


Before we address Carrell=s issue on appeal, we must first consider Haldane=s claim that Carrell failed to attack the no-evidence summary judgment motion and therefore that the judgmentCwhich did not state on what ground the motions were being grantedCmust be affirmed.  See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).  Carrell does appear, at first glance, to have argued that the trial court erred only as to granting the traditional motion for summary judgment.  Carrell=s brief does not mention Ano-evidence,@ it cites only the standard of review for a traditional motion for summary judgment, and Carrell failed to include the no-evidence motion itself in the clerk=s record.  As a result, Haldane argues that Carrell has failed to appeal one of the grounds upon which the trial court could have based its judgment, and this failure entitles Haldane to affirmance.  But Carrell replies that she has assigned error as to the no-evidence point because her argumentCthat she has raised a genuine issue of material fact on the Sabine Pilot elementsCis the same, whether she is addressing the traditional motion or the no-evidence motion.

If a trial court grants summary judgment without specifying the grounds relied on, the reviewing court must affirm if any of the summary judgment grounds are meritorious.  Id.  The appellant must assign error and provide argument challenging  each independent ground for summary judgment or the judgment will be affirmed on the ground not complained of.  Wortham v. Dow Chem. Co., 179 S.W.3d 189, 198 (Tex. App.CHouston [14th Dist.] 2005, no pet.);  Nabors Corp. Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 95 (Tex. App.CHouston [14th Dist.] 2004, no pet.).       


We note the Texas Supreme Court=s preference for a liberal construction of the appellate rules, so that cases are decided on substance rather than procedural technicality.  Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Indep. Auto, 1 S.W.3d 108, 111 (Tex. 1999).  Even though different standards and scopes of review are used when reviewing traditional and no-evidence motions for summary judgment, the substance of Carrell=s argumentCthat she raised genuine issues of material factCwould be the same no matter which motion she was addressing because the motions essentially raised the same issues.  In both of her briefs, Carrell reviewed the evidence in support of each element of her cause of action that Haldane claimed was unsupported by evidence.  Because we have been given sufficient argument and authorities to decide the appeal on substance rather than on a technicality, we choose to address Carrell=s arguments.  Therefore, we hold that Carrell did not waive her challenge to the no-evidence motion for summary judgment.

II.       No Evidence Motion

Having decided the initial waiver issue, we turn next to Carrell=s issue and specifically to whether the trial court erred if it granted summary judgment on the no-evidence motion.

A.      Standard of Review

In reviewing a no-evidence summary judgment, we effectively consider only the evidence contrary to the motion.  City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005).  We view the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.  Id. at 824.  If the non-movant brings forth more than a scintilla of probative evidence raising a genuine issue of material fact, then the summary judgment is improperly granted.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).  More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair‑minded people to differ in their conclusions.@  Id.  

B.      Express Request Irrelevant

A plaintiff must Aprove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act.@  Sabine Pilot v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).  The parties argue whether a cause of action under Sabine Pilot requires that an express request or demand be made of the employee to do the illegal act.  Haldane urges that Ed Rachal Found. v. D=Unger, 207 S.W.3d 330 (Tex. 2006), from the Supreme Court and Mayfield v. Lockheed Eng=g & Sciences Co., 970 S.W.2d 185 (Tex. App.CHouston [14th Dist.] 1998, pet. denied), from this Court militate in favor of such a requirement.  However, we need not decide this question because either interpretation requires the plaintiff to prove that the act she refused to perform was illegal.  Here, Carrell has not shown that the act she refused to do was illegal.


C.      Carrell=s Evidence Did Not Present A Genuine Issue of Material Fact as to Illegality

In response to the no-evidence motion, Carrell must have presented more than a scintilla of evidence to show that accessing the website would have been illegal.  Under the penal code, Carrell must show that she was required to Aknowingly access[ ] a computer, computer network or computer system without the effective consent of the owner.@  Tex. Pen. Code ' 33.02(a).  An Aowner@ is one who:

$                   has title to the property, whether lawful or not, or has a greater right of possession of the property; or

$                   can restrict access to the property; or

$                   is a licensee.

Id. ' 33.01(15).

As for the property that was misused, the parties assume without specifically arguing that both the password and the Career Builder website qualify as property; for purposes of addressing Carrell's argument, we will assume that with them.  However, Carrell did not rely on such a broad definition in her petition and response to the motion for summary judgment.  Carrell limited herself in the trial court to misuse of the password and specifically her misuse of the Administaff password and Haldane's misuse of Administaff's password.  She never complained in the trial court that Haldane did not have Career Builder's consent to use the password or its website or that she was fired because she refused to use the website.  She generally referred to accessing the website, but the website was mentioned only to say that Haldane illegally used Administaff's password to access the website.  Thus, at one point in her response she declared, APlaintiff told [Haldane=s manager] that she could not use the password until [ Haldane] confirmed that Administaff knew and agreed with its use.@  And later, she reiterated the point by saying, A[Haldane] terminated [Carrell] for the sole reason that she refused to use a password that belonged to another Company without its permission.@  (emphasis in original)  Because of this, we limit our consideration to the proof Carrell presented to the trial court that Haldane illegally used Administaff=s password.


Carrell presented no evidence regarding who was the Aowner@ of the Administaff password beyond an assumption that Administaff owned the password.  Likewise, she presented no evidence that Michelle Raychel was or was not an Aowner@ within the meaning of the statute.  She did not present the court with any licensing or other agreement proving who was authorized to use the password.

She presented evidence that only Scott Raychel, a salesman with Haldane, could sign onto the careerbuilder.com website.  Some evidence shows that the username and password Scott Raychel used belonged to Scott=s ex-wife, Michelle, and that Ian McClure, Haldane=s president and owner, had approved using the password as a test to see if it would be cost effective for McClure to purchase his own username and password.  This is perhaps some evidence showing that the password did not belong to Haldane. 

However, it does not prove who was the owner of the password for purposes of the statute, nor does it show that Haldane did not have the owner=s consent to use the password.  If Michelle was an owner of the password, she might be able to  authorize both Scott Raychel and Carrell to use it; that would depend on the agreement with Career Builder or with Administaff or both.  As it is, the record contains only conjecture without any proof of who owned the password.  Lacking this, Carrell's allegations are based on stacked inferences that fall because they have no support.

As a result, the trial court correctly entered judgment on Haldane=s no-evidence motion for summary judgment.  See FM Props. Operating Co., 22 S.W.3d at 872.  Since we affirm the grant of the no-evidence summary judgment, we need not address the traditional motion.  See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).


Conclusion

Having overruled Carrell=s sole issue on appeal, we affirm the judgment of the trial court.

                                                                             

 

 

 

 

/s/         Wanda McKee Fowler

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed May 24, 2007.

Panel consists of Justices Fowler, Edelman, and Frost.